Challenging order dated 18.10.2022 passed by Sr. Civil

Judge & JMFC., Nipani, in OS no.40/2022 on IA no.1 filed under

Order XXXIX Rules 1 and 2 of Civil Procedure Code, 1908, this

appeal is filed.

2. Appellant herein was defendant; while respondents

herein were plaintiffs. O.S.No.40/2022 was filed seeking for

following reliefs:

“(A) It be declare that the plaintiffs have got

preferential right to purchase the joint share of

defendant i.e. 30 guntas of land out of

Yamagarni R.S.no.73/11, as per Sec.22 of The

Hindu Succession Act.

(B) The injunction be granted in favour of the

plaintiffs

against

the

defendants

No.1

restraining him not to alienate the suit property

to any stranger till disposal of this suit.

(C) The permission may kindly be granted to

the plaintiffs to amend the plaint as and when

necessary.

(D) Any other relief(s) that deems fit be

granted to the plaintiffs.

(E) The costs of the suit be awarded to the

plaintiffs from the defendant.“

3. In said suit, IA no.1 was filed under Order XXXIX

Rules 1 and 2 of CPC seeking for temporary injunction

restraining defendant not to alienate suit property till disposal

- 3 -

of suit. In affidavit filed in support of application, it was stated

that plaintiffs were brothers and defendant was their uncle. Suit

property

viz.,

agricultural

land

bearing

R.S.no.73/11,

measuring 1 acre 11 guntas situated that Yamagarni village,

Nipani Taluk originally belonged to propositus Govind Jeevaba

More. During his lifetime, propositus allotted suit property to

defendant, who was his son through first wife, while plaintiff’s

father Sri.Sadashiv was born to propositus through second wife

– Smt. Sundarabai.

4. It was further stated that defendant was aged about

80 years and unable to carry out agriculture work. He was

residing at Nipani and working with Sri Annappa Babu Shetti, a

tobacco merchant. Therefore, plaintiffs were in possession and

cultivation of suit land. It was submitted that on coming to

know about intention of defendant to sell suit property,

defendant sought first preference through their father Sri

Sadashiv, who had died on 29.05.2009. Inspite of demand,

defendant was attempting to sell it to others, therefore suit was

filed. It was stated that plaintiffs were having preferential rights

under Section 22 of Hindu Succession Act and defendant cannot

alienate suit property in favour of others. And further if interim

- 4 -

injunction as sought for were not granted, they would suffer

irreparable hardship and suit itself would be frustrated.

5. Said application was opposed by filing written

statement, wherein defendant has stated that suit property fell

to his share in partition that took place between children of

propositus decades ago. In terms of partition, wherein

properties

of

propositus

were

divided,

M.E.no.3177

of

Yamagarni village was duly certified after notice to all parties.

Therefore, plaintiffs did not have any right of preemption.

6. Based on pleadings, trial Court framed following

points for consideration:

1. Whether plaintiffs have made out a

prima-facie case?

In

whose

favour

the

balance

of

convenience lies?

3. Whether plaintiffs are put irreparable

loss if injunction is not granted?

4. What order?

7. On consideration, trial Court answered points no.1 to

3 partly in affirmative and point no.4 by allowing application in

part and directing defendant to maintain status-quo in respect

of schedule property till disposal of suit.

- 5 -

8. Assailing said order, defendant is in appeal.

9. Sri Vitthal S. Teli, learned counsel for defendant

submitted that admittedly, suit was filed by nephews of

defendant, after death of Sri Sadashiv, who was half-blood

brother of defendant. It was firstly contended that right under

Section 22 of Hindu Succession Act was not available to half-

blood brothers and as it was limited to Class-I heirs mentioned

in Schedule. It was further submitted that said right was a

weak right which was available to plaintiffs.